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Tech Week Ahead: Net Neutrality Showdown at D.C. Circuit

The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...

By Alexei Alexis and Lydia Beyoud

Nov. 27 — A high-stakes legal challenge to the Federal Communications Commission's net neutrality rules gets its day in court Dec. 4, when the U.S. Court of Appeals for the District of Columbia Circuit hears oral argument in the case.

The FCC's top lawyer, Jonathan Sallet, will go head-to-head with attorneys representing the US Telecom Association and a host of other challengers to the agency's rules. At stake is the FCC's reclassification of broadband Internet providers as telecommunications services, rather than more lightly-regulated information services, as well as the agency's authority to apply those same rules to mobile Internet providers.

Some challengers, including tiny Texas-based Internet service provider Alamo Broadband, will argue against the rules on First Amendment grounds.

The D.C. Circuit isn't expect to issue a ruling in the case until early next year.

The argument will conclude a busy week in Washington for the tech and telecom sectors. On Dec. 3, the House Energy and Commerce Communications and Technology Subcommittee will finally reconvene a twice-postponed hearing on broadcast ownership issues. While lawmakers are expected to revisit issues raised in a similar 2014 hearing on minority media ownership and FCC broadcaster regulations, there's also likely to be a lot of political messaging from both sides of the aisle on the FCC's divisive net neutrality rules.

E-Mail Privacy

The House Judiciary Committee is planning a Dec. 1 hearing on legislation (H.R. 699) to update the Electronic Communications Privacy Act of 1986. Under the bill, law enforcement agencies would be required to obtain a search warrant based on probable cause before accessing Americans’ e-mails and other online communications stored in the cloud. The measure would eliminate a “180-day rule” that has been used to justify warrantless access to older e-mails.

The bill, dubbed the E-mail Privacy Act, enjoys strong support from Silicon Valley and privacy advocates and has more than 300 House cosponsors, including senior Judiciary Committee members such as Reps. James Sensenbrenner (R-Wis.), John Conyers (D-Mich.) and Jerrold Nadler (D-N.Y.).

Richard Salgado, Google Inc.'s director of law enforcement and information security, is among those who will be weighing in at the hearing. Others expected to testify include Andrew Ceresney, director of the Securities and Exchange Commission's enforcement division. The SEC and other law enforcement stakeholders have raised concerns about similar ECPA overhaul legislation pending in the Senate (S. 356).

The House Energy and Commerce Committee's Commerce , Manufacturing, and Trade Subcommittee has scheduled a Dec. 1 hearing on mobile payments, part of a “disrupter” series examining trends in the technology space. John Muller, vice president for global payments policy at PayPal, is among those scheduled to testify.

According to a background memo prepared by committee staff, questions that may come up include: How have mobile payment options disrupted the traditional landscape? What hurdles exist for widespread consumer adoption? What privacy considerations should be looked at in the mobile payments ecosystem?

The Senate Judiciary Committee is scheduled to hold a Dec. 2 hearing on the impact of trade secret theft on U.S. competitiveness, and potential solutions.

Communications attorneys are expected to be out in force at the Federal Communications Bar Association and Practicing Law Institute's annual conference Dec. 3 to Dec. 4. Some of the industry's top lawyers, lobbyists, Hill staffers and FCC officials will be speaking at the event. Republican FCC Commissioner and pop culture reference aficionado Ajit Pai will deliver keynote remarks. Pai's fellow Republican commissioner, Michael O'Rielly, will help close the first day of the conference, which wraps up just before the annual FCC Chairman's Dinner, also known as “telecom prom.”

The second day of the conference is set to tackle privacy and cybersecurity issues, media regulation and new technologies.

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